Sound argument by Claudia Cornwall West Vancouver, March 23, 2023, Letters in The Globe and Mail
Re “Supreme Court hears important federalism case without its only Indigenous member” (March 22): Justice Russell Brown is not able to sit on a major federalism case. To avoid the possibility of a split vote, Chief Justice Richard Wagner excludes Justice Michelle O’Bonsawin from Ontario. She is the first Indigenous judge in the Supreme Court’s history. In what world does this make any sense?
The case looks at law regulating projects under federal jurisdiction, including those on Indigenous lands. While also from Ontario, Justice Mahmud Jamal’s history in Edmonton is cited as one reason for keeping him on the case. Why is this more important than Justice O’Bonsawin’s deep understanding of Indigenous concerns?
The Chief Justice’s decision reminds me of a quote often attributed to Otto von Bismarck: “If you like laws and sausages, you should never watch either one being made.” Now that I have watched the sausage being made, my respect for the highest court in the land is seriously eroded.
Amir Attaran (@email hidden; JavaScript is required)@profamirattaran:
The Chief Justice Wagner rule:
If a white, male judge appears to sexually harass someone, justice requires shoving an Indigenous, female judge to the side.
Why are the 3 Quebec judges sacrosanct, while the 1 Indigenous judge is surplusage? A rotten call by the Chief Justice.
Of course, CJ Wagner is Harper’s judge, a white man with power and privilege, the worst kind of white man, in my experience.
… When the Court last had 8 justices active after the Nadon fiasco, they sat as 8.
Gillian Calder@gilliancalder March 21, 2023:
On a division of powers case the only Indigenous justice on the SCC, is removed, to “right” the imbalance that exists because of the investigation into Justice Russell Brown’s alleged sexist and violent behaviour.
And in this context, we silence an Indigenous woman.
Supreme Court sits without Justice O’Bonsawin, its sole Indigenous judge, on major federalism and environmental policy case, It’s not a good look for the Court by Emmett Macfarlane, March 22, 2023, Declarations of Invalidity, Substack
Hearings started yesterday on the federal Impact Assessment Act, which a majority of the Alberta Court of Appeal deemed an unconstitutional intrusion into provincial authority to approve new energy projects.
Normally in a major case like this, the Supreme Court would sit with a full panel of nine. But with Justice Brown on leave due to an investigation into allegations of improper behaviour at a Arizona resort, the Chief Justice had a choice: sit with eight judges or seven? The former risks a tie vote and thus ‘indecisive’ outcome (technically speaking, a tie vote would mean the Alberta Court of Appeal judgment stands – and normally that would be fine, but in the context of a reference case theoretically a government could choose to disregard such an outcome, and a tie vote might give it incentive to do so).
Chief Justice Wagner chose to sit with seven. In some respects, this was the ‘safe’ choice, not only to avoid a tie but also because it conforms to general practice of sitting with an odd number.
The problem, however, is that in the context of a highly controversial division of powers dispute, the choice also risks politicization. We know who sits on the bench matters. Justice Brown himself is regarded as a strong voice for provincial authority. His absence is therefore seen as significant. The optics here is that leaving someone out risks changing the potential outcome. Moreover, the judge sitting this out is Justice O’Bonsawin, the Court’s first and only Indigenous justice. It may be that there was a discussion and she agreed to sit out. It may be that Wagner chose her because she is the most junior puisne justice. Regardless, in a case involving environmental regulation and with implications for the use of land, it is perhaps not a great look.
The better course of action, in my view, would have been to sit the full eight. Having eight judges involved in a decision is hardly unprecedented (indeed, the Court is allowing eight votes to stand in cases for which Brown was present at hearing but did not take part in the judgment – its usual practice when a judge becomes ill or unexpectedly leaves the Court).
Moreover, a tie vote would not create some sort of rule of law problem. Courts and governments have consistently treated reference opinions as every bit as authoritative as regular cases, and so if the federal government decided a tie vote here gave it leeway to pretend the IAA remained ‘good law’ it would be the one playing with fire.
As Allan Hutchinson recently wrote, this problem highlight the degree to which constitutional law is inherently political. There’s a very good reason the Court evolved in the Charter era to routinely hear major cases with all nine judges: deciding which judge(s) to leave out can impact the outcome (prior to the Charter, and especially prior to 1975 when the Court had far less control over its docket and routinely heard cases that were not of national importance, the Court would much more routinely sit in panels of 5 or 7). Canadians should be hearing what the full slate of (available) judges has to say on issues of national importance.
Emmett Macfarlane @EmmMacfarlane March 21, 2023:
Idiotic move, IMO.
Legal Affairs Canada@LawScribes:
Newest justice Michelle O’Bonsawin will sit out: Rare seven-judge Supreme Court hearing begins for pivotal federalism case.
Brock Roe@brock_lawyer:
Question: So, is the only Indigenous Justice on the SCC to be benched for the really important constitutional reference cases? Or is she to be benched for every case the SCC decides to hear from today onwards? If so, why did she sit already?
What’s the CJ’s reasoning here? Asking for some ppl who finally saw a glint of representation on our highest court, and to be there when the most crucial decisions (such as this one) are made.
Emily Wang@e_wang_ Replying to @brock_lawyer:
They’ve been rotating around which judge(s) sit out since February, although I haven’t done the math on how many times each judge has sat (maybe someone has?).
Amir Attaran@profamirattaran March 21, 2023:
Sorry to say so, but the Chief Justice of Canada is a fool. In a federalism case, he dumped the only Indigenous judge.Fool or showing us his true racist misogynistic colours. Harper put him on the supreme court for reasons, same reasons he plunked fallen from grace, “creepy” J Russell Brown on it.
I guess all the talk about sovereign Indigenous “nations” was filler, and the true nations are just the provinces and Canada.
Indigenous nations have an extremely deep stake in how environmental assessment is done on their treaty and unceded land. The CJC snubbed them by sidelining the only puisne judge from those communities. So long, reconciliation.
***
Sean Fine@SeanFineGlobe March 21, 2023:
First Indigenous judge left off panel as seven-judge Supreme Court hearing begins for pivotal federalism case
So much for the seat at the table. One of the stated purposes of the federal Impact Assessment Act is to ensure protection for Indigenous peoples and lands. . . and because an Alberta judge got in a punch-up in Arizona, and is now in discipline hell. . .
…Justice Michelle O’Bonsawin, the first Indigenous judge since the court was established in 1875, is left off the panel.
Better than sitting 8 because it might be a tie?
Justice Michelle O’Bonsawin left in the locker room . . . first Indigenous judge excluded from federalism hearing…
Fists flying right off the hop. . . Justice Rowe throwing haymakers. . .
… In Justice Brown’s absence, Justice Rowe and Justice Côté are doing their best to pick up the slack, hacking away at federal arguments from Ottawa’s counsel Christopher Rupar.
Justice Sheilah Martin of Alberta trying to ascertain whether Ottawa has moved beyond federal jurisdiction. . . if the feds lose Martin, they lose all.
Martin Z. Olszynski @molszyns Replying to @DwightNewmanLaw @SCC_eng and @UCalgaryLaw:
I’m going to give Dwight the benefit of the doubt that he was merely observing that we were intervening against AB’s arguments, and perhaps that’s remarkable b/c of the old “Calgary school” brand that still stalks our university. Happy to help shed that reputation to be sure.
Nigel Bankes@BankesNigel March 21, 2023:
Well just look at this. A USask law professor seeking donations from the #YYC oil and gas community because law profs at U of C are representing clients adverse in interest to the GoA in the Impact Assessment Case. Aren’t you just a little ashamed of this post Dwight?
Dwight Newman@DwightNewmanLaw March 21, 2023:
Chief Justice Wagner having Justice O’Bonsawin sit out the IAA hearing in order to get to an odd number of justices not the best look for the Court …
This morning the @SCC_eng hearing on the Impact Assessment Act Reference gets underway (will run today and tomorrow). I count 4 law professors from @UCalgaryLaw listed as counsel on intervenor factums – all of them grouped with the federal govt and against Alberta.I don’t see the U of C law profs for or against any gov’t, I see them as
To the Calgary business and law firm community: please feel free to send donations to @UsaskLaw. (I admire and appreciate each prof pursuing what they think is right, but good to support intellectual diversity.)A nice example showing how low lawyers stoop for money. Academia is already over fermented with corporate “donations” and thereby biased towards law violating, life threatening oil and gas industry polluters.
Jennifer Koshan@JenniferKoshan Replying to @DwightNewmanLaw and @UsaskLaw:
Out of line, Dwight.
Will Ratliffe@ratliw Replying to @DwightNewmanLaw and @UsaskLaw:
So @usasklaw has taken a formal position on this case?
No wonder DwightNewmanLaw prof asked for polluter patch donations in such a vile low handed way! He’s presenting at the brainwashing law students RunnymedeKKKlan!
Runnymede Society@RunnymedeSoc March 20, 2023:
Next week, don’t miss this chance to watch a virtual debate between @KerriFroc and @DwightNewmanLaw, hosted by our @UNBLawchapter.
Avnish Nanda@avnishnanda March 21, 2023:
What a weird flex from someone who preaches collegiality and diversity of viewpoints (the arguments advanced from @UCalgaryLaw profs are very different from each other).
Ah! I see why — garnering standing, donations. Well, it’s clear what type of person Dwight is, and hope others can recognize it in his attempt to dunk on his legal colleagues to ingratiate himself with corporate sponsors
What a joke. More importantly, it may be difficult for a guy from Saskatchewan to appreciate this, but Calgary / Alberta is not a monolith, and nor should anyone conform to whatever his political/legal fantasies are about this place.
Absolutely I am unhappy with the trash remarks @DwightNewmanLaw tweeted, especially knowing the political and academic context in Alberta, and what is a clear attempt to impugn the credibility of people all Albertans should admire, as well as @UCalgaryLaw
There is context here: McCarthy-esque litmus tests in Alberta have been used to deny law schools, professors of funding, positions, most famously the David Suzuki matter. Even look what Dwight’s tweets have generated, which could create a chill on profs doing this work
You best believe I am going to call someone out who attacks my colleagues and others at @UCalgaryLaw for the positions they are advancing on behalf of CLIENTS at @SCC_eng
in a manner that undermines their credibility (and of their institution).
Geoff Sigalet@GeoffSigalet Replying to @avnishnanda and @UCalgaryLaw:
Spewing ad hominem venom on one of our finest scholars @DwightNewmanLaw
(not to mention one of the most charitable human beings I know) show us what kind of person you are @avnishnanda This kind of behaviour is what is truly out of line.Ooo la la Pissy Dude’s nerves struck.
Annamaria Enenajor@AEnenajor Replying to @GeoffSigalet @avnishnanda and 2 others:
There must be something else going on b/c this level of outrage is really unwarranted & out of line. @avnishnanda’s fearless dedication & body of work show what kind of person he is. His comment was a perfectly acceptable criticism of your charitable friends request for charity.
Avnish Nanda@avnishnanda:
Whatever man — your intent was clear and it’s pathetic. Try to actually be the person you project to be rather than just a partisan cloaked by academic language
… Dwight engaging in partisanship, lacking all substance of the arguments advanced. Here’s the one advanced by @molszyns (of @UCalgaryLaw ) and I on how principle of democratic accountability within our legal order should inform analysis https://www.scc-csc.ca/WebDocuments-DocumentsWeb/40195/FM030_Intervener_World-Wildlife-Fund-Canada.pdf
Dwight Newman@DwightNewmanLaw Replying to @dodos43 @SCC_eng and @UCalgaryLaw:
There’s no issue. I appreciate and admire each individual who stands for what they believe in. The cumulation was just a surprise in the context of Calgary’s reputation and context.
UnAlbertan by Lisa Young, March 21, 2023, What now?!? An Alberta Politics newsletter, Substack
Today, four of my colleagues over at the Law School are appearing at the Supreme Court to argue on behalf of various intervenors in an important case: The Impact Assessment Act Reference. I’m not a lawyer, but I think I can imagine what an incredible thrill it must be to put on those funny black robes and make an argument in front of the highest court in the land. So, huzzah!
But a scan of social media this morning suggests that not everyone is thrilled. Why? Because all four of them are arguing against the Government of Alberta’s stance that the Act is an unconstitutional intrusion into provinces’ jurisdiction over natural resources.
This little kerfuffle is a microcosm of one of the tensions that publicly-engaged academics in Alberta experience. It’s not unique to Alberta, but I think it takes on a particular quality here.
Alberta is a distinctive place, economically and politically. The oil and gas industry has made the place fabulously wealthy, at least by Canadian standards.
The province is the spiritual center of the Canadian Conservative movement.And the centre of racism, misogyny, bigotry, homophobic, anti love, anti environment, anti public health care, anti drag, pro extreme religion, pro polluter law violations, etc., and the violent hate-filled criminal wanting to murder Trudeau fucker trucker invasions.
The norms of university hiring mean that most academics aren’t from here. The academic job market is national (and sometimes international) and universities in Ontario, Quebec and BC graduate the bulk of PhDs in Canada.
Now, some academics are attracted to the distinctiveness of the province, or they read the room and settle right in. You can trace the origins of the Reform Party in part to lunchtime conversations held on the 7th floor of the UCalgary Social Science building back in the late 1980s. The so-called Calgary School was unique because it was a group of academics who were prominent and heavily politically engaged on the political right.
For the rest of us, having a public profile can sometimes be a little less comfortable, because we know that in the eyes of some, our views are … unAlbertan. I lost track of how many times I was called “unAlbertan” just for asking AER (when it was EUB, then ERCB) to regulate Encana’s endless law violations in my community and elsewhere. After I filed my lawsuit trying to access the inaccessible legal club of Canada, the attacks on me escalated, including by Harper’s anti terrorist squad invading my home property, trying to terrify me silent, and lots of other “Albertan” white male bullies trying to scare me into dropping my lawsuit and stopping speaking to media when they called. I was trying to protect drinking water for Albertan’s kids’ futures, and mostly what I received in return was “ProReformaCon and only ReformaConAlbertan” abuse. Lots of it. Not one lawyer, gov’t agency, or politician, that I know of, publicly spoke out against about what I was enduring just for trying to seek “justice” in Alberta.
Writing today, Christopher Rufo, an American conservative activist who some say invented the conflict over critical race theory argues that states are entitled to shut down academic departments that are “taxpayer-funded sinecures for activists who despise the values of the public whom they are supposed to serve.”
I don’t think we’ve gone so far down the road to Florida that we’re in danger of having a full-blown dust-up over CRT or academic freedom here in Alberta. Or at least I hope not. Hope won’t help any of us if Canadians are idiotic, selfish and hate-filled enough to vote Pierre Poilievre into power next federal election or if Albertans vote for UCP/Danielle Smith in the upcoming provincial election, which idiot Albertans did. We’ll slide down that slope so fast, our heads won’t spin, they’ll fly off.But I can imagine versions of that line about ‘activists who despise the values of the public’ are being muttered in some circles today.
What does it mean for an academic to ‘serve the public’? It’s a big question and all I have to offer is the version of an answer that I’ve worked out for myself over the years.
The most proximate public is our students. It’s our obligation to inform them and introduce them to ideas beyond those that have been readily accessible. To create space for them to figure out where they fit, politically. I was out of the classroom for several years and when I went back, I was struck by the change in the demographic composition of the student body. But it shouldn’t have surprised me, because it’s a reflection of the changing face of Alberta. In this context, making sure students can see a place for themselves in Alberta’s political community is an important priority. This means that talking about race, and gender and intersectionality isn’t optional.
When speaking to the broader public, academics have a couple of responsibilities. First, to inform. But second, and more controversial, to offer critical perspectives. This involves offering analyses that aren’t part of the local consensus, whether it’s talking about energy transition or reconciliation with Indigenous people. Offering these perspectives is – believe it or not – a form of loyalty.
The idea that academics must be loyal to the state or the local consensus is profoundly dangerous.
In 1931, Italian academics were required to take an oath «I swear fidelity to the King, to his Royal successors and to the Fascist regime, and I swear to respect the [National Fascist Party’s] Statute and the other laws of the State, and to fulfil my teacher’s and all academics’ duties with the aim of preparing industrious and righteous citizens, patriotic and devoted to the Fascist regime. I swear not to be or ever become a member of organizations or parties whose activities are incompatible with my official duties». In contemporary China, there’s no comparable oath, but loyalty to the state/party is imposed from above and below.
A lively, engaged academy bolsters a community. It brings new ideas that can challenge the status quo. On days when faculty members do or say things that challenge government, democratic governments grit their teeth and let it pass. Because the alternative is to take a step on the road to authoritarianism, a road too many US states are starting to travel.
So, law school colleagues: Huzzah! Enjoy your day in court.
Veronica:
Excellent blog. Highlights the issues facing everyone who challenges the dominant fractious discourse in our province. Conversations no matter how uncomfortable need to happen and our current government and the trolls don’t like it one bit.
Nigel Bankes@BankesNigel Replying to @JLisaYoung:
Thank you for this expression of support for my colleagues. As you say so appropriately “The idea that academics must be loyal to the state or the local consensus is profoundly dangerous.” #ABleg
@email hidden; JavaScript is required @LouroAlfredo Replying to @JLisaYoung:
… Also there’s the obvious attempt by the UCP to politicize legal proceedings.
Proud Woke Left Radical with No Fucks Left To Give@midgelambert:
Thanks for expressing my thoughts so well. I’m thankful we still have people here who see outside the O&Gbox & pay attention to how our actions impact all our neighbours. I think the myth of being distinctive comes because so many Abtns never look beyond their own bubbles.
I am delighted and grateful for these four UnAlbertan Albertans standing up for a livable future on our magnificent planet we call home.
Rare seven-judge Supreme Court hearing begins for pivotal federalism case by Sean Fine, Justice Writer, March 21, 2023, The Globe and Mail
The Supreme Court of Canada is sitting with seven judges, rather than eight, for a major federalism case that began Tuesday morning, in the absence of a judge who tangled with a U.S. Marine in Arizona.
The judge who has been designated to sit out is Justice Michelle O’Bonsawin, the court’s first Indigenous member.
Justice Russell Brown is caught up in a disciplinary process after a physical altercation at a Scottsdale hotel in late January. Chief Justice Richard Wagner placed him on paid leave from his $403,300 job on February 1 after being informed of a complaint to the Canadian Judicial Council over the incident.
The subtraction of Justice Brown from the nine-member court left Chief Justice Wagner with a dilemma: sit eight, and risk a tie, or seven, and look as if he is tilting the result.
The case before the court Tuesday and Wednesday is an especially sensitive one because it involves determining the basic rules of the Canadian federation. The issue to be decided is whether a federal environmental law that gives Ottawa the power to regulate natural resource projects usurps provincial authority. Alberta has challenged the law, known as the 2019 Impact Assessment Act. (Seven other provincial governments are intervening, mostly against the law.) And the missing Justice Brown, who was appointed from Alberta, has been an outspoken voice for provincial rights.
The process by which a chief justice designates the judges who will hear a case is shrouded in mystery. Former Supreme Court judge John Major told The Globe and Mail that every judge has the right to hear each case, but it is not a right that is exercised often, if at all, because, he said, in practice, it works the other way: “‘How do I get off?’ You don’t see people fighting to get on.”
Several legal observers interviewed by The Globe and Mail endorsed an eight-member court.
“It is better to risk a hung court and a 4-4 tie than look political,” Peter Russell, a professor emeritus of political science at the University of Toronto, said.WTF!? The court is political (and it’s judges lie, including the current Harper judge CJ Wagner). Politicians appoint our judges to all levels of court and Canada has heaps of corrupt vile racist bigoted misogynistic hate-filled and hate-farming politicians: Jason Kenney, Doug Ford, Steve Harper, Brian Mulroney, Scott Moe, Danielle Smith, Pierre Poilievre, Christy Clark, and on and on and on the political-judicial circle jerk corruption goes.
Others, such as James Phillips, editor-in-chief of the Osgoode Society for Canadian Legal History, supported seven. He said he expected Chief Justice Wagner to leave off the panel a judge he expected would be on the federalist side, to balance off the loss of Justice Brown, universally expected to have taken the provincial-rights side.
The court is regionally diverse. By law, it has three members from Quebec. (No legal observer interviewed expected a judge from Quebec to be left off the panel.) By tradition, Ontario has three, Atlantic Canada one and the Western provinces two.
The judges are not expected to be “regional advocates,” says Margot Young, a professor at the University of British Columbia’s Allard School of Law.
Yet the regional makeup of the court “accepts that perspective (and expertise) matters,” Prof. Young said in an email.
A few of the sane comments:
TomatoFarmer:
I don’t know how the court can leave out the one indigenous member.Me neither. It’s beyond disgusting, but so typical of our racist courts in Caveman Raping Canada.
McDSmith:
They explained that she is seen as possibly being seen as leaning toward the Federal rather than provincial viewpoint, true or not being seen matters. If her decision was against Alberta then screams of a fix would be all over these pages. Too bad that Canada like the US has become fairly polarized. We can thank heinous Harper for that.Now this even though judges by the nature of the job are supposed to be neutral. It is also that Russel is very supportive of Alberta governments way of thinking.
Sunshine coaster:
Read the article. The Cheif Justice has removed nor judge from the case to ensure the court is NOT stacked in any direction. The evidence available about Justice Brown suggests he deserves to be removed from the court. His belligerent mysogynistic behaviour in Arizona matches his bull headed offside attitude about provincial rights. He belongs in Texas, not Canada.I think he fits even better in Florida.
Alceste:
Guy in the middle says of the Supreme Court: “appointed in large part by a government with no credibility outside Justin’s bas”
Since last September, the full 9-person court has had the slimmest possible majority of justices appointed by the Liberal government: 5 to 4. Even then, most decisions released reflected the Harper majority (the hearing having taken place before September)
For the previous decade, the court had a majority of justices appointed by Stephen Harper.
Guy doesn’t deal in facts.
Ian_TO:
No, we need a federal adult to oversee the politically motivated erroneous views such as Smith and her cohorts bring. Trying to have separate provincial powers monkeying with a national interest such as climate damage is just a conservative view of power which must be countered.
LAS from YYC:
Although a binding decision is best in my opinion, Chief Justice Wagner and the court will be damned either way. Depending on the outcome of this case, Danielle Smith will either cry and moan about how mean and unfair the court is to Alberta or holler from the mountaintops that she delivered a blow to Ottawa. Her disrespectful attitude is meant to erode trust in our federal institutions and pave the way (or so she thinks) to Alberta sovereignty.
Martin Toronto:
I don’t get why Justice Brown hasn’t resigned yet.
He should leave while he still has some dignity and stop letting his personal issues interfere with the business of the nation’s highest court.And save taxpayers a massive fortune in his legal fees/costs, which we are forced to pay, no matter how vile the judge’s “conduct.”
Jimbo5:
Justice Brown was appointed by P.M. Harper as a known spoiler and antagonist of the Supreme Court. Brown fits the technical requirements (aledgedly) but his claim to impartiality is in serious question. Google “Russell Brown doesn’t belong on the Supreme Court”. An opinion piece from the time of his appointment in 2015 containing a description of the baggage Russell Brown brought with him to the Court.
northerncrank:
Written in the Toronto Star, that notoriously pro-Harper paper.
Dylan the Brave:
This is going to be a mess.
gentle_reader:
Isn’t the issue that the Court is compromised by electing a creepy self-entitled stalker? Imagine the case before the court was about consent and alcohol – should the public have confidence that justice is being done and being seen to be done?
He’s 57 years old and he wants to get in a fight with a 31 year old ex-marine. Is this the behaviour of rational logical person? If Justice Brown, in his high minded dispassionate application of superior intellect, came to the conclusion that, if it came to physical force, that he would prevail, then we have a big problem with quality of thinking held by Supreme Court justices. I’m surprised the judge isn’t carrying his teeth around in a little Crown Royal bag.
Maintaining the Canadian legal system is obstructing justice for Indigenous peoples, Even Indigenous legal professionals are complacent with the status quo by André Bear, CBC, Mar 21, 2023
This Opinion piece is by André Bear, a graduate of the University of Saskatchewan’s law school who is now pursuing his master of laws.
The Canadian legal system seems eager to fill its prisons mostly with Indigenous peoples, as evidenced by our staggering overrepresentation.
On the other end, there are countless legal professionals making a good living off our overrepresentation: lawyers, judges, prison officials and anyone else who profits.
Although Indigenous peoples desperately need allies in the legal profession, at some point we should also recognize how the ongoing injustice seems to be paying off mortgages for many non-Indigenous professionals.
At what point do we recognize that the more injustice we face, the more profitable we are to those that are benefiting from the legal system?
Complicit with the system
We are now at a point where even Indigenous legal professionals like myself have become complicit with the Canadian system, because it’s easy for us to doubt our ability to make a difference through the competitive and colonial nature of law.
Indigenous legal professionals fight through the endless barriers of systemic and institutionalized racism pitted against us, to fiercely advocate for our people’s rights to be treated with dignity and compassion.
While becoming a lawyer myself, I am proud to see revered Indigenous representation in the legal profession, but I cannot meaningfully participate in this system when I know better alternatives exist for our people.
Establishing tribal courts
The United States, for example, has operated a tribal court system since the 1980s, under which tribal nations are in charge of making their own laws and enforcing them on their own land.
These tribal courts are not perfect by any means, but it’s inspiring to see Indigenous nations in charge of their own legal system, especially when considering the possibilities of establishing a foundation of healing and restorative justice.
Tribal courts have existed for decades, and the practice of restorative justice has already been proven to be more effective than retraumatizing people through a violent prison system.
You would hope that, in a place like Canada, we might be world leaders when it comes to fairness and equality. That is mostly true — unless you are an Indigenous person.
The mistreatment of Indigenous peoples in Canada’s legal system is abhorrent. We have endless reports proving this that the government will recognize but fail to act upon.
Unfortunately, even most Indigenous lawyers that I know are comfortable practising within the Canadian legal system, but this doesn’t mean that they agree with its colonial nature. I am certain that if they could work in an alternative restorative justice system, many of them would.
Recognizing Indigenous laws
We are at a critical point in time. Canadian courts are finally starting to recognize Indigenous laws, and Indigenous peoples are remembering the spiritual laws we were once forced to forget.
It can be overwhelming — even for Indigenous legal professionals — to understand the weight that our spiritual laws and responsibilities carry unless we are trained by medicine people and connected to our ancestral way of thinking.
It took me around 12 years of consistent fasting and yearly sun dancing to capture even a sliver of what our ancestors understood about our spiritual laws.
Nonetheless, that sacred part of my life always seemed completely separate from my understanding of what makes a legitimate legal system.
But maybe not for long.
Legal systems coming together
Perhaps times are changing. Both the Canadian government and the Supreme Court are beginning to recognize Indigenous laws, and our authority to enforce them on our own land.
For now we are dependent on the colonial legal system, so dependent that sometimes it is hard to see a future where Indigenous nations are back in control.
When I see the thousands of Indigenous peoples crowding our prisons, and the Indigenous children statistically likely to join them, I cannot fathom why there hasn’t already been a co-ordinated effort to establish an Indigenous-controlled court system in Canada.
I’m not saying legal professionals agree with the way things are, I’m saying we are complacent enough to accept it. This could be condemning another generation of Indigenous children to the Canadian prison system.